By Ryan Hannable | Comments Off on SI’s Michael McCann offers when Deflategate ruling could come, reiterates ‘odds are not good for [Tom] Brady’

Michael McCann

On May 23, the NFLPA and Tom Brady appealed the federal court ruling re-instating his four-game suspension. Typically, these appeals take three to six weeks, but we’re well past that window now.

Appearing on “SI Now” on Wednesday, Sports Illustrated legal expert Michael McCann gave an update on when a ruling might come down.

“We’re within the expected time frame when a decision is expected as to whether or not the second circuit will grant a re-hearing,” McCann said. “Five weeks is about the length of time one would expect given past cases. That said, the second circuit can take as long as it wants. There’s no deadline. It could be this week. It could be next. It could be August. It could be September. I don’t think it will go that long, but there’s no guarantee when it will occur and I know a lot of Patriots fans’ thinking is — is that good news or bad news in terms of the delay, but it doesn’t really mean anything necessarily. They have other cases. The judges have their own schedules and sometimes it can take awhile to review a case.”

As for the end result, McCann still believes the odds are against the Patriots quarterback.

“The most likely verdict is the second circuit will not grant a re-hearing,” he said. “The second circuit grants re-hearings at less than one percent of the time. The odds are certainly not good for Brady. That said, you can argue [he’s] made a compelling argument about process. He’s had several influential advocates, including Ken Feinberg, provide amicus briefs that suggest the second circuit should take the case. The odds are not good for Brady by any means, but they aren’t zero. I think Brady is in a position he will play it out as long as he can.”

Sports Illustrated legal analyst Michael McCann joined Dale & Holley on Monday to discuss the latest with the Tom Brady Deflategate case as on Monday the court reinstated the quarterback’s four-game suspension for his role in Deflategate. To listen to the interview, visit the Dale & Holley audio on demand page.

McCann wasn’t surprised with the judges siding with the NFL having been the courtroom for the hearing, but he was surprised with how fast a ruling was reached.

“The lightning speed — I mean look, the Adrian Peterson case is still going on,” McCann said. “The hearing for Adrian Peterson was last October. He still doesn’t have a decision in his federal appeal. This happened so quickly, rapid speed. Almost unheard of. It happens just very rare. The speed of it, very surprising. In terms of the decision, I took sense when I was at the hearing that two of the three judges, the judges that ruled against Brady were very skeptical of the NFLPA’s arguments and they certainly seemed to favor the NFL. From that lens, I wasn’t completely surprised.

“I thought they would remand the case, rather than just reverse. Had they remanded it, it would have gone back to Judge Berman to rule on three other issues that he didn’t rule on. It would have been a much better outcome for Brady, not what he sought, but better than what he got. This is the second-to-worst case scenario for Brady. The worst would be if the decision was 3-0. There’s a silver lining that Judge Katzmann is the dissenting voice. That could help him going forward. Clearly, this was a disappointing day for Brady.”

McCann detailed what is next for Brady, as Adam Schefter reported late Monday Brady isn’t pleased and is mulling his options.

“The main option is to seek a [review] where Brady would ask that the entire Second Circuit Court of Appeals consider this case. Basically, a new appeal,” McCann said. “Rarely granted in the Second Circuit. It’s only granted less than one percent of the time. I think the odds are a little bit better here. A, It is a split decision. And B, I think a very important point, the Chief Judge is the dissenting voice. This is the person at the top. This is the person at the top saying, ‘You know what, my two colleagues got it wrong. Tom Brady shouldn’t be suspended.’ I would have to think some of the other judges are going to be sympathetic to that or at least interested in that viewpoint. It won’t be easily dismissed.

By Travis Upham | Comments Off on Michael McCann on OM&F: ‘I was awestruck’ by judge’s comment about ‘overwhelming evidence’ against Tom Brady

Michael McCann

Sports Illustrated legal analyst/UNH law professor Michael McCann joined Ordway, Merloni & Fauria on Friday to discuss what went down in Thursday’s Deflategate appeal hearing. To hear the interview, go to the Ordway, Merloni & Fauria audio on demand page.

The judges in Thursday’s hearing seemed to favor the NFL, judging by the questions and comments they made. One judge described the evidence against Tom Brady as “overwhelming,” which came as a shock to many in the courtroom, including McCann.

“The ‘overwhelming evidence’ comment by Judge Chin, I was awestruck. I had no idea where that was coming from,” McCann said. “Even if you take the Wells Report at its word, it doesn’t make that point. This is taking what was ‘more probably than not’ and transforming it into ‘beyond a reasonable doubt.’ I don’t understand the sequence of how that happened in his mind.”

The appeal hearing was expected to be an evaluation of Judge Richard Berman’s ruling on the case, not an analysis of the case itself. Expectations certainly did not match up with reality, as the judges focused almost exclusively on details from the Wells Report. One of the pieces of evidence they felt was particularly damning was the destruction of Brady’s cell phone.

“Brady turned over all of the phone records. He turned over his emails. And by phone records, according to [NFLPA attorney Jeffrey] Kessler, Brady went to the phone company, he got all of the phone numbers that Brady called and texted, and the NFL already had all of those texts from [John] Jastremski and [Jim] McNally and others,” McCann said. “So, it’s not as if there’s this pool of information that Brady was hiding. The Wells Report and the NFL already had it. It’s almost like the judges weren’t as familiar with the facts as others are.”

Added McCann: “It’s very bizarre. Kessler tried to use the phone as a way of showing that Brady was treated unfairly. Specifically, Brady is punished by [Roger] Goodell after the Wells Report comes out. Brady then goes to arbitration, he goes to the appeal, and Goodell goes against him. Well, during that appeal, this phone issue surfaced, and Kessler said, ‘Look, you can’t come up with some new ground to punish Tom Brady during the appeal,’ because if you do that there’s no second appeal, there’s no double appeal or anything like that. So it’s really unfair to Brady to bring up new reasons during an appeal. We don’t do that in law. Judge Parker basically said, ‘Well, arbitrators do what they want.’ I was really surprised and, frankly, disappointed by that kind of reasoning.”

Thursday’s Deflategate appeal in a New York City courtroom didn’t go as many had predicted it would.

Tom Brady and the NFLPA’s lead attorney Jeffrey Kessler was reportedly peppered with questions and second guessing from the three-judge panel as the NFL was appealing Judge Richard Berman’s decision to vacate Brady’s four-game suspension for his role in Deflategate.

Sports Illustrated legal analyst Michael McCann, who was in the courtroom, believes the NFL will win the appeal 2-1. (A comprehensive breakdown of the hearing from McCann can be read by clicking here.)

McCann wrote he expects “it will be a 2–1 decision, with higher odds it falls in the NFL’s favor than in the NFLPA’s favor.” It doesn’t matter if it’s 3-0 or 2-1, the outcome would be the same. The decision will take several months, although McCann noted Judge Robert Katzmann signaled it might come sooner than later by stating, “this is an expeditious court.”

If the NFLPA loses, Kessler argued the case should go back to Berman as Berman’s order, per McCann “intentionally declined to rule on three alleged missteps by the NFL: whether [Roger] Goodell was ‘evidently partial’ by delegating his authority to NFL executive vice president Troy Vincent; whether Goodell unlawfully made factual conclusions that were outside the scope of the Wells Report and Brady’s appeal; and whether Goodell expressing support for the Wells Report after its publication prejudiced Brady’s chances for a fair appeal and thus prevented Goodell from lawfully serving as the arbitrator for the appeal.”

On the other side, the NFL and lead attorney Paul Clement argued if the judges reverse the order Brady should serve his four-game suspension, while adding “it would be an awful shame” for this matter to hang over the NFL and Brady into next season.

In Wednesday’s Boston Herald, longtime labor lawyer Daniel Mahoney writes that Brady “is almost assured to lose at the next stage of his legal battle with the National Football League. The Second Circuit Court of Appeals will get it right and side with the NFL, not Brady.”

One of Mahoney’s assertions is that Judge Richard Berman erred by focusing on a statute called the Federal Arbitration Act when he should have used the Labor Management Relations Act. McCann said the NFL already brought that up, but Berman has precedent on his side.

“The NFL has argued that point, it’s in its briefs,” McCann said. “The counterargument is that the Federal Arbitration Act, which the NFLPA has cited, has been used in other player disputes. So while I think he’s right, Daniel Mahoney’s right in that normally the Federal Arbitration Act doesn’t apply to labor disputes in general, in sports it’s a little bit different. And I think we’ve seen it play out repeatedly. Sports cases are not always tried and litigated in a way that are consistent with other labor disputes.”

McCann said Mahoney makes some valid points, but McCann disputes the article’s premise that Brady is in trouble.

“Reasonable minds can disagree about it,” McCann said. “And I think Daniel Mahoney wrote a very strong piece that favors an NFL perspective. It’s not the perspective that I share. It’s also not the perspective of other attorneys that I’ve talked to about this case share. But it’s certainly meritorious.

“It’s like any appeal. The issues are debatable. It’s not clear-cut. It really depends on how you want to interpret the law. I think personally Judge Berman’s decision will likely stand review. But I can understand why other minds might disagree. And his points have some weight. But I would counter that some of his points are rebuked by Tom Brady’s attorneys during the brief that will be reviewed tomorrow.

“My instinct is that Brady’s in good shape going into tomorrow, but with a Federal Appeals Court, you never know what’s going to happen.”

Pressed for a prediction, McCann said Brady appears to have the advantage.

“I think the odds favor him,” McCann said. “I can’t get into the mind of the three judges — really, two of them is all that it takes to either affirm or vacate. So my instinct is that Brady probably will win. But nobody can say with certainty what’s going to happen.”

Sports Illustrated legal expert Michael McCann checked in with Mustard & Johnson over the weekend to talk about the next step in the Deflategate case for Tom Brady, which the NFL’s appeal is scheduled to be heard in a New York City courtroom on Thursday.

The three judges that will hear the case are Chief Judge Robert A. Katzmann, Judge Denny Chin, and Senior-Status Judge Barrington D. Parker. McCann believes this is a good thing for Brady.

“You have a group a judges who appear, at least at the outset, good for Brady because if you are Brady you want judges that are going to be sympathetic to labor issues,” McCann said. “You’re going to want judges that are going to be sympathetic to union or management. Although these are not by any means far left or far right judges, they kind of are in the middle. Their track record suggests they are likely to rule for Brady. I say that because they tend to affirm the decisions of district court judges on arbitration matters. That is the key point because that is what Brady wants.

“Brady wants the judges to say, ‘Yeah, Judge Richard Berman got it right’ and based off some of the research I did, these judges usually find Judge Berman got it right. About 75-80 percent of the time they agree with Judge Berman and the instances where they haven’t, aren’t really relevant. They are constitutional, criminal law issues.

“Overall, it’s a favorable picture for Tom Brady, but I would caution you never know with what’s going to happen. Judges have lifetime tenure, they do what they want. They call it like they see it.”

One of the questions surrounding Manning since the New York Daily News article went viral is if he could face any legal consequences now that light has been shed on this old case.

“Nothing is going to come of this, there isn’t going to be some new investigation into what happened 20 years ago,” McCann said. “The statue of limitations have expired. It really ended in 2005 when the litigation ended in a settlement.”

While Manning may not be in any trouble legally, the same cannot be said for his public image. Before this story resurfaced, he was dealing with accusations that he took human growth hormone in 2011. The squeaky-clean reputation the quarterback once had has come under fire in recent weeks.

“I have to think that there’s a chance that his reputation will be irreparably hurt,” McCann said. “I don’t think he’s going to be seen as villain or anything like that, and he’s going to go to the Hall of Fame. I don’t think it’s going to have that kind of dramatic impact, but this is going to be a cloud over him, and he can’t really talk about it because he signed a non-disclosure agreement as part of the settlement.”